A closer look at NSW politics - without a vested interest, an agenda to push or a chip on my shoulder.

Monday, September 24, 2012

Stay Directly In Gaol

Sometimes standing up for an individual's rights can put you in a difficult position.

As many of you would know, my day job is a criminal defence lawyer. Some of my clients have been accused of pretty awful criminal offences. Others who I have represented on sentence have admitted committing awful offences.

That's ok. I'm proud to stand up for someone and make sure they receive the just penalty, rather than the penalty that an ill-informed public baying for blood might deem appropriate.

Having said that, I'm sensitive to society's views on criminal punishment. By way of example - at present the maximum penalty for a person who sexually assaults a person under the age of 16 is 20 years imprisonment.

At present, there are a select group of offences that are deemed worthy of imprisonment for life (including, for example, murder and some examples of gang-rape.

If someone wanted to make the argument that sexual abuse of a child should be added to that list, then that is a discussion we should have. I'm not backing any such change - but it's a reasonable argument for someone to make.

What I will almost always oppose are changes that remove a court's discretion. I wrote earlier this year about the new law mandating life-imprisonment for murder of a police officer earlier this year.

But if there is a particular maximum penalty that needs to be increased, then so be it.

This is why I was so interested to watch this documentary from the always excellent Louis Theroux:

The doco is fascinating, and thoroughly worth a viewing. In short, Theroux spends a few days in a mental hospital in the US that was built for paedophiles who are still deemed to be too great a risk for a release, but who had finished their court-imposed sentence.

The offenders were kept in good conditions (at least when compared to a prison). They had all sorts of luxuries and benefits that are not afforded to regular prisoners.

And so it should be. These men had all completed the sentence that was imposed by the court, and there was no longer any basis for "punishing" them. They had rec-rooms, DVD players, sports competitions - they just weren't allowed to leave and re-enter the community.

The problem was that an idea that is perhaps good in theory was perhaps always destined to fail - the "inmates" were almost never approved for release. Even those that completed all the necessary rehabilitative programs found that accommodation difficulties, judicial review or plain bureaucratic SNAFU's meant that they tended to remain there indefinitely - even once approved for release.

But in theory, I think the idea has merit. A person who had completed his or her sentence should not be punished further - but surely there is merit in keeping those people separate from potential victims.

The problem in NSW is that there is not even an attempt to ensure that punishment is not any part of the preventative detention.

This act, in short, allows the state to apply to the Supreme Court of NSW to keep a person in custody after the completion of his or her sentence if the person is service a sentence for a "serious sex offence".

This isn't simply keeping the person away from potential victims - a person who is subject to such an order is kept in gaol, as if their sentence was not yet finished.

It is abhorrent, but no one really seems that fussed. They're just sex-offenders, after all.

Today Greg Smith announced that the scope of the act was to be widened:

If it was simply a matter of preventing these offenders from re-integrating into the community, and if they were housed and cared for in such a way that made that clear, then I would have some sympathy for the position.

But that is clearly not the case. These people will simply be kept in gaol as if they were still serving their sentences.

And that's the problem. An idea that would be a necessary evil if carefully thought through and sufficiently funded becomes an arbitrary, capricious law that unnecessarily and grossly breaches human rights.